Properly made development applications in Queensland – when is the consent of a body corporate required?

When must a development application in Queensland be accompanied by the written consent of the body corporate, as the owner of certain common property? This was the issue before the Court in a recent case over a development application for Short-term accommodation (Spice Apartments Residential Management Pty Ltd ATF SARM Trust v Brisbane City Council [2023] QPEC 2).

The development application for a material change of use

The applicant (Spice Apartments Residential Management Pty Ltd) operates a property management business and manages the properties of several owners at the existing residential development, "Spice Apartments", located in South Brisbane. Spice Apartments comprises two buildings of 274 residential lots and common property. The second respondent is the body corporate for the Spice Apartments Community Titles Scheme (CTS).

The applicant submitted a code assessable development application on behalf of several lot owners at Spice Apartments seeking a development approval for a material change of use for Short-term accommodation over part of the land. The application sought that 63 of the existing dwellings be used for Short-term accommodation.

In June 2022, the Council issued an action notice in relation to the development application. The notice stated that the application was not properly made as it did not include the signed owner’s consent of the body corporate.

"A material change of use" and the need for the owner's consent

Under section 51 of the Planning Act 2016 (Qld), a development application must be accompanied by the written consent of the owner of the premises relating to the application where the applicant is not the owner (which was uncontentious in this case), and the application is for a material change of use. A material change of use is the start of a new use or a material increase in the intensity or scale of the use of the premises.

The applicant submitted to the Court that the consent of the body corporate was not required as the proposed use of Short-term accommodation only intended to use the common property consistently with its ordinary use and established function in accordance with the already approved uses of the land. It relied on two decisions to support this position: Bartlett v Brisbane City Council [2004] 1 Qd R 610 and Savage v Cairns Regional Council [2016] QCA 103.

The Court distinguished the current case from those decisions. In the present case it was clear that the use of a significant number of the lots for Short-term accommodation would lead to a material increase in the intensity or scale of the use of the common property. In fact, there was unchallenged evidence of “apparently unlawful” Short-term accommodation use already occurring at the Spice Apartments with notable impacts, such as impacts on vehicular access and parking facilities, garbage disposal and the pool area.

Conversely, in the decisions referred to by the applicant there were either no known impacts on common property^[1] or the common property was to be used consistently with the ordinary right of access to and from the lots.^[2]

The Court was satisfied that there had not been any error on the part of the Council in deciding to issue the action notice requiring the owner’s consent of the body corporate. The application was dismissed.